Guilty Until Proven Guilty: Rule 61 of the ICTY Aleksandra B. Stankovic, Cleveland State University Abstract

Guilty Until Proven Guilty: Rule 61 of the ICTY

Aleksandra B. Stankovic, Cleveland State University

Abstract

Guilty Until Proven Guilty: Rule 61 of the ICTY

The following article critiques the pre-trial procedure of the International Criminal Tribunal for the Former Yugoslavia, (ICTY) a topic of great significance at the moment, as the trial of Radovan Karadzic, one of the ICTY’s most well-known fugitives, has recently commenced in the Hague. This article argues that the ICTY’s Rule 61 procedure, which an absent Karadzic was subject to over ten years ago, severely degrades the defendant’s right to a fair trial in two ways. First, it effectively functions as a trial in absentia, contravening the ICTY statute and depriving the defendant of the right to be present at trial. Secondly, Rule 61 procedure degrades the defendant’s right to a public trial by limiting the public’s ability to control judicial proceedings, a central purpose of a public trial.

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Rule 61 procedure was the result of a compromise between the civil and common law countries that created the ICTY, the former advocating for the Tribunal’s adoption of the trial in absentia, the latter urging to keep it out. An agreement was reached with Rule 61, which allowed for a functional equivalent of the trial in absentia when the defendant could not be apprehended. This procedure is different from the traditional trial in absentia, as it does not produce a final, binding verdict; instead, the defendant is re-tried upon extradition to the ICTY.

Rule 61 is a novel pre-trial procedure that is not utilized in any other court, either at the national or international level. Unfortunately, this unique procedure significantly infringes on the aforementioned due process rights of the defendant, mainly by acting like a trial in absentia without the necessary protections of such a trial. I propose that Rule 61 should either be changed to better accommodate the defendant’s rights by allowing defense counsel participation, or should be eliminated from use in the ICTY. Furthermore, Rule 61 should not be used as a template for future international criminal tribunals. It should be noted that this topic is particularly significant because Radovan Karadzic is the first Rule 61 defendant to be apprehended and tried, and it is unclear how the findings and witness testimony of his Rule 61 hearing will be used at trial.

Suggested Citation

Aleksandra B. Stankovic. 2009. "Guilty Until Proven Guilty: Rule 61 of the ICTY" ExpressO

Available at: http://works.bepress.com/aleksandra_stankovic/1

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